I’m watching the debate, during which Rick Santorum really misconstrued Gov. Romney’s record on gay rights. Here’s what David wrote about this very argument in January of 2007 here:

Did Mitt Romney choose gay marriage for Massachusetts? That’s the thrust of a bizarre and amateurish legal argument that is circulating through the internet and conservative media. A group calling itself “MassResistance” has been peddling for many months the argument that the Massachusetts Supreme Court did not actually mandate same-sex marriage in Massachusetts but instead merely requested that the legislature change the laws to permit same-sex marriage. Since the law was not changed (and since the Court didn’t have the authority to order the legislature to write new laws)–so the argument goes–Governor Romney therefore never had to recognize same-sex marriage and was in fact the “father” of same-sex marriage when he permitted state and local officials to perform and recognize such marriages. For the latest example of this specious argument, see the quotes from MassResistance member John Haskins in this story.

If such silly legal arguments didn’t cause so much harm, I would read them and laugh. Instead, some serious people seem to be taking these arguments seriously, so let me take a moment for a little bit of constitutional law 101. As with most bad arguments, MassResistance starts with a grain of truth: Judges have very little authority to order legislators to do anything, and depending on the state constitution may have no power at all to issue orders to the legislature. The proper, constitutional, role of the judiciary is to interpret the law, not make new law.

MassResistance argues that the Massachusetts Supreme Court overstepped its bounds and ordered the legislature to change state laws to permit same-sex marriage. Because the laws have not yet been changed (and because the court can’t issue such an order in the first place), same-sex marriage is not yet legal in Massachusetts, and Governor Romney’s decision to recognize same-sex marriages since the court’s decision was entirely optional and discretionary.

Sounds compelling, right? Sounds almost scholarly, doesn’t it? Well, there’s a problem. Even if you accept every premise of MassResistance’s argument regarding the proper role of the courts and the legislature, their argument falls apart based on the language of the same-sex marriage case itself.

You can read the entire opinionat the Massachusetts court website, but for those who lack the time–or stomach–to read the whole thing, please pay attention to this paragraph:

We construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others. This reformulation redresses the plaintiffs’ constitutional injury and furthers the aim of marriage to promote stable, exclusive relationships. It advances the two legitimate State interests the department has identified: providing a stable setting for child rearing and conserving State resources. It leaves intact the Legislature’s broad discretion to regulate marriage.

What does this mean? It means that the court interpreted (that’s another word for “construed”) Massachusetts law to mean that two people of the same sex could marry–and that any interpretation contrary to the court’s would violate the rights of homosexuals. In other words, the court did not order the legislature to do anything. Instead, it did what the constitution allows it to do–it interpreted the law. It did so in an improper, activist way that abandoned the obvious original intent of the Massachusetts constitution and the Massachusetts marriage laws, but it interpreted the law nonetheless.

Now, take a look at the next paragraph:

In their complaint the plaintiffs request only a declaration that their exclusion and the exclusion of other qualified same-sex couples from access to civil marriage violates Massachusetts law. We declare that barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution. We vacate the summary judgment for the department. We remand this case to the Superior Court for entry of judgment consistent with this opinion. Entry of judgment shall be stayed for 180 days to permit the Legislature to take such action as it may deem appropriate in light of this opinion.

Read it again. And again. Do you see any order directed against the legislature? No? Well, that’s for a good reason. The court did not order the legislature to do anything–it merely stayed its judgement for 180 days for the legislature to take action that it deemed “appropriate.” However, since the marriage laws had already been interpreted (construed) to include same-sex marriage, the legislature did not have to take any action at all for same-sex marriage to become legal. It was already legal because of the court’s decision.

Frankly, it is sad that so many could be misled by something so simple–and simply wrong. When the Governor confronted the Massachusetts Supreme Court, he had two choices: (1) He could fight the decision using legal means; or (2) he could risk contempt citations and impeachment in an ineffectual, grandstanding attempt to block same-sex marriages. Rather than becoming the what the media would undoubtedly call the “George Wallace of gay marriage” and hand homosexual activists a propaganda victory to go along with their court victory, Governor Romney fought using the law and using his enormous gifts of persuasion. As a result, the same-sex marriage movement has lost public momentum, has lost court cases, and has lost at the ballot box. And we have Governor Romney and his principled, courageous, and compassionate defense of traditional marriage to thank for much of that success.

Mitt Romney did not “choose” gay marriage. At a critical moment in our nation’s history, Mitt Romney did make a choice, and he chose to defend marriage in a way that can and should make all conservatives proud.

P.S. If you doubt David’s qualifications to read a court case, please read his bio.

Nancy: So glad you posted this explanation. I really did not know how everything happened. I just knew that Mitt would always do the right thing. Go Mitt!

http://mittromney2012-bestchoice.blogspot.com/ Keiji

I ran into MassResistance for the 2008 Presidential elections when my website was “Uthans for Mitt.” The man representing them pushed this argument back then also. I remember thinking back then that the Governor can’t just tell the court he doesn’t care what they think. He can challenge them, and Mitt Romney did, and he can fight it on the federal level to out law Gay Marriage, which Mitt Romney did, but you can’t say they don’t have their role to interpret law.

Terry

I’d forgotten about that MassResistance bunch. I remember reading their take in 2008 about how Romney could have done things differently. At the time, their explanation didn’t exactly sound straight-up to me.

Now I know why.

Liz

I knew Santorum was breaking a commandment when he said this, because I watched Mr. Romney leading the rally on the steps there in Mass against the court’s extreme gay marriage maneuver. He was magnificient and I’m sure him being out there leading the charge was NOT politically popular. Catch the clip on You Tube, it’s inspiring.

RJLigier

Santorum accurately represents what actually occured which was well documented even before the existence of massresistance. Romney was involved in collusive litigation prior to the case being adjudicated before the MSJC. The decision to implement homosexual marriage was at the sole discretion of the state legislature and the Governor. Romney initiated the process by providing marriage licenses and then making a token gesture to stop the process by citing a 100 year old statute. The legislature’s job was to implement homosexual marriage within 180 days. They failed to directly do so yet placed continual impediments to referendum in order to prevent overturning the decision of the liberal MSJC.

Dscott

Thank you for posting this. I have recently (before I read this article) sent and email to MassResistence censuring them on this very issue because I have been following them for some time. They are bent on distorting Romney’s character on this issue and so I appreciate you laying it out clearly. For those who want to see the Youtube clip Liz refers to I believe this is it: http://youtu.be/0rQ7s7NKql8

You contradict yourself in your post, m’man. First, you state correctly that the decision to implement homosexual marriage was at the “sole discretion” of the state legislature and Governor Romney. Then you charge that the legislature’s job was to implement homosexual marriage within 180 days.

The MSJC never ordered Romney and the legislature to implement gay marriage. What the MSJC did was stay the judgement for 180 days to, in their words, “permit the Legislature to take such action as it may deem appropriate in light of this opinion” [emphasis added]. “As it may deem appropriate” is not an order to implement, but a granting to Romney and the legislature of the choice to take whatever action they determined was best.

In my opinion, Romney handled the situation brilliantly.

Let Freedom Ring

Rick Santorum should know better than this. After all, he went around with Mitt speaking in support of him in Mitt’s last run for president.

Concerned Citizen

I have a question: A couple of weekends ago I was lucky enough to attend the wedding of two very good friends of mine. They have been together for a few years now, and they are raising their child together. Each of the families adores their new in-laws and they could not be happier for them to be together. Neither of them has been married before, and so there are no divorces in their histories.

Could you explain to me, if they had been not allowed to marry, EXACTLY WHOSE marriage would have been defended as a result?